The Study Of The Commercial Banks’ Foreign Guarantee Legal Risk And Prevention

After China entering WTO, the international economic exchanges expanding, tradingrisk has also come with. The foreign guarantees issued by commercial banks fit the need ofinternational economic and trade development because of their characteristics of independent,documentary and irrevocable and have become the mainstream of the international guarantee.However, as the foreign guarantees promoting international economic trade and ensuring thesuccessful performance of the foreign business contracts, it brings a serious blow to China’sforeign trade enterprises and different levels of economic losses to commercial banks. Thus,understanding the legal risks of foreign guarantees and strengthening risk prevention has avery important practical significance for China’s commercial banks to healthily develop theirforeign guarantee business.The first chapter introduces the basic conception and characters. In my opinion, foreignguarantees are characteristic of independent, documentary and irrevocable. Based on theindependent character, which is also the reason of risks. The international convention andusual practice are also covered in this chapter. In addition, through the compare of the foreignguarantees and domestic guarantees, the conclusions show up that the difference is law quality,defense rights and law concerned and how foreign guarantees impact on domestic guarantees.The second chapter is a core part of this dissertation. It concerns the risks on theapplicable laws. In foreign economic activities, how to choose the applicable law should beconsidered once disputes rise. If the applicable law is foreign law, commercial banks will facethe unforeseen risks. At the same time, the imperfection terms of the foreign guarantees alsogive a great deal of risks. Under marketing economy conditions, fraud from beneficiaries willbring legal risk to commercial banks when they carry out foreign guarantee business.On the basis of the foregoing arguments, the third chapter put forwards the specificrecommendations to deal with the legal risks for Chinese commercial banks. In order to copewith the risks form using applicable law problems, commercial banks should use clearlanguage on the selection of applicable law. On the other hand, in order to avoid the legalrisks of ideographic unknown terms of the guarantees, commercial banks should make anexhaustive review for the content and terms of guarantees before issuing the foreignguarantees. In addition, through the principle of fraud exception, stop payment order andpreservation measures can effectively against the risk of fraud.